this case is nowhere close to it. a to local exception to the treaty power. >> you're saying there may be an outer bound, but this case is not one of them. >> you are subjecting yourself to the same criticisms leveled against the other side, that you are proposing a case-by-case evaluation with respect to each treaty. >> no, your honor. the question here is whether this legislation implements a valid treaty. the treaty is valid. to explore that. your proposition there is no daylight between the treaty itself and implementing legislation. to me there's a lot of daylight between the two. i picked this example not because it's controversial, but because it relates to an area where the federal government has never been thought to have

authority, namely family law. marriage,no federal federal divorce, federal adoption -- it's all in state law. let's assume that an international treaty is approved by two thirds of the senate and requiresdent, which states to approve same-sex marriage. if that were a self-executing would, same-sex marriage have to be approved by every state. if it is not self-executing, it will be up to congress to produce that result. congress would do it, or could do it by having a federal marriage law. then you would have to have a federal divorce law. i suppose a federal adoption law. i think there's a big difference

between just doing it through a self-executing treaty and bringing the congress into areas where it has never been before. i think there is daylight between the treaty and requiring the treaty to be implement it in the fashion that you assert is necessary here. the structural point is this. that a self-case executing treaty that requires the president to negotiate and two thirds of the senate to ratify it, can he force an obligation of that kind, that it has to be the case that a non- self-executing treaty that has the same approval of the president, the same two thirds ratification, an additional protection, can do what the

self-executing treaty can do? it has to be the case. >> i don't think it has to be the case. there's a great difference between requiring the states by a self-executing treaty to marriage, andx dragging the federal government or allowing the federal government to enter into this of marriage, divorce, adoption, family law, where the federal government has never been. due respect, i don't think there is in a daylight here with respect to this treaty. does what the treaty obligated the u.s. government to do. the notion that the treaty obligation can be satisfied by relying on the states to enforce their assault laws, which is the core of my friend's argument here, is directly contrary to the history of the framing --

>> that is the part that i can't quite get my mind to these germanic questions -- dramatic questions. it's a very big question. i'm not there yet. the reason i'm not there is because there are some words in this treaty called other peaceful purpose. we have to interpret those words, and the same words are in the statute. my question to you is what reason is there to think that those matters on list a fall within those words. what is list a? it is infinitely long. a few things on it are in homes's -- holmes's position. he talked about being a small boy, to move a barrel of kerosene with a candle in it,

alit, so it will burn down a barn after a few hours. kerosene is a chemical. he talks about a case where a person went to a racetrack and gave a horse a pose -- poison potato. he talked about a case involving somebody else trying to light a match, which is a chemical, and setting fire to a haystack. we can all think of athletes, lance armstrong, at least accused of unlawfully taking why do we think matters of list a fall within those words outside the words other peaceful purpose, even though they are unlawful? did anyone say to the drafters of the convention -- i found nothing in this brief on the point -- where did anyone tell ,ongress, the poison potatoes drug enhancing performance -- performance-enhancing drugs, the

example the justice alito used, you give vinegar to a goldfish -- these are all chemicals not in the annex, but they are chemicals. they are nothing to do with chemical weapons. why do we think we have to get beyond that fact? heart of whatthe the national interest is in this case with respect to this treaty and implementing legislation, and the here -- harming here is in the process of line drawing. ist the petitioner is asking accords on a case-by-case basis after the fact make ad hoc judgments -- >> there's an easy way out of that. we say the chemicals involved are the chemicals in the annex. but you're not prepared to say that. >> i'm not. >> once we get outside the

annex, we have to draw lines or say, this encompasses the poison potato, poison goldfish, small , performance-dle enhancing drugs. i would say judges are here to draw lines, and between drawing all those things into it or drawing lines, it's better to draw a few lines. >> we can talk about hypotheticals, but a key point about them is they are hypotheticals. >> these are real cases. >> the goldfish is not a real case. >> they are not real cases because you have not prosecuted them yet. [laughter] --you told older neri people ordinary people you're going to prosecute ms. bond for using a chemical weapon, they would be flabbergasted. it's so far outside the ordinary meaning of the word.

the statute has in norma's breadth. readth.mous b would it shock you that i told iu a few days ago my wife and distributed toxic chemicals to a great number of children? [laughter] the halloween be given chocolate bars. chocolate is poison to dogs. >> [indiscernible] >> there would be chocolate all over the place. [laughter] >> the line the petitioner is asking -- i'm not. i would like your answer. my question with a question to get your answer. the answer i wanted you to address yourself to a slew problem of once you depart from the annex is in defining the

you run into a list a thousand miles long. you can tell joke after joke, but it's not a joke. it's so easy to make up examples that seem to have nothing to do with the problem of chemical weapons like the syrian problem. >> i understand that. >> what is your answer? >> if you permit me to answer the question this way, the line the petitioner is asking courts to drop is whether the particular use is warlike, or whether it constitutes a thisful purpose under convention and under the implement ink statute. >> one of the very things we're trying to sort out right now in syria under the chemical weapons convention is where the line is between peaceful uses an warlike uses.

peaceful uses is not only in the chemical weapons convention, it's in the nuclear nonproliferation treaty, and we engaged in sensitive negotiations right now under the nuclear nonproliferation treaty. it would be terribly unfortunate if the court were to announce in ae context of this case definition of what warlike constitutes that could have an unfortunate bearing -- >> can you tell us what the line is we're trying to draw? >> the framers of the convention and congress implementing the convention made a judgment that there needs to be a comprehensive ban, and you can't be drawing these kinds of lines. >> can i ask why that is? this convention and implementing legislation is broad. it applies to a very large category of weapons, and a very

large category of uses, of conduct. what were they thinking about, about why they wanted these for a broad categories? why it's not more limited with respect to the chemicals or conduct? they madee chemicals, the judgment because you can't predict in advance how chemicals are going to be used and how toxic they will be in combinations and how dangerous they will be in combinations. i am you're telling me, attempting to draw the line, that's what i'm attempting to do. if you say it's against the national security interest, that it is the national interest against the national interest of the u.s., for me to attempt to draw such i line, i guess the defense department ought to file . brief is that what you're telling me, if i write the opinion i think a lot requires me to write, i'm somehow hurting the national

security interest? >> there is a real risk in courts getting involved, defining the line between warlike and peaceful purposes. when the convention is purposely drafted broadly, there are additional risks in terms of the very act of ringing this process of line drawing to bear. case-by-case, and hack -- ad hoc constitutes at violation what doesn't will undermine the ability of our negotiators to make treaties in the future. >> you did not give the line to the chief justice's question where there was a treaty that intruded on the federal structure. you gave a treaty where the president is required to set aside any state law that in his view contravenes the national interest. you have given us no principle the other way. what i think justice kennedy

would suffice to decide this case, to conclude that the local limit the petitioner is advocating here as applied case- by-case to local limit is not one inconsistent with the constitutional structure because if you go back to the framers, it's clear from that era of framing that the framers intended to give the national government the power. >> can you accept then that a treaty cannot be in -- inconsistent with our constitutional structure? there isourt has said a question in treaty power case, whether the subject matter of the treaty is the proper subject for a treaty. that is a question the court can ask. to draw'm not prepared a specific line here today, there may well be a line to be drawn. here, the petitioner has conceded and i think all of us would agree, this is the proper

subject of the treaty. >> there are a lot of treaties after the world war ii era where you have international conventions affecting everything. we have international conventions on the abduction of children, international conventions in human rights. they cover a vast swath of subject matter. it seems to me the only thing you are saying what is a limit on what treaty power can be a source for is some determination , no less arbitrary than the lines other people are asking us to draw between what's appropriate under the treaty power and what's not. i would like a fairly precise answer, whether there are or are not limitations on what congress can do with respect to the police power, if their authority is asserted under a treaty, is there a power to intrude upon a police power unlimited? >> the way i would answer that is if the treaty is valid. >> ok, the treaty is valid.

legislation that does not go beyond the treaty is --id, even if it subjects is even of the subject goes beyond. if the treaty is valid, this statute implements the treaty word for word implementation of the obligations of it. >> you would rather have the court determine if we're concerned about intrusion on police power whether the treaties are valid or not, and determine whether the particular implement in legislation is valid or not? >> no. because it is conceded in this case that the treaty is valid and the petitioner has not elaborated any argument that would allow this court to make a judgment about when an exercise of the treaty power is valid and when not, you have to take as a given -- >> the point of the hypothetical

is in trying to get your general principle. i can imagine treaties you would ,ay are within the treaty power particularly in the post-world war ii era. there is a structure of .imitations, as i said earlier the two thirds ratification requirement is we'll -- real with respect to one of the treaties your honor just referred to, convention on civil and political rights. when the senate ratified it, it did use its power to make reservations to preserve our federal system. there are about 1000 ratified treaties on the books right now. we don't have the congress using the treaty power to usurp the role -- >> no.

the whole point is that some people think we do have exactly that in this case. usually when we have a case that implement significant and serious bilateral concerns, we get a lot of briefs and all that from our treaty partners. is there any concern that has been expressed in any concrete way by them about whether this is bond -- mrs. bond is prosecuted? i don't think anybody would say the whether or not mrs. bond is prosecuted would give rise to an international incident. the question is whether congress has the authority to pass a comprehensive ban. be applications of that band do not advance the national interests in a profound -- ban that do not advance the national interests in a profound way -- almost all the legal counsels

of the state talking about how if petitioner's argument were accepted, it would severely damage the u.s. possibility to enter into negotiations and treaties? >> that's true. >> i'm sure there are people who have worked in the national branch of government for the state department and who would have as much authority as they .an get we are concerned about limitations on others. do we have briefs from state authorities concerning intrusion on their prerogatives? >> this convention is a convention that all but four nations on earth have signed. the legislation we have enacted is model legislation that over 120 other nations have enacted as well. >> this court has issued decisions in recent years, holing there are some limits -- holding there are some limits on congress's power.

there have been legal commentators who have written articles saying that could be circumvented through the use of the treaty power. do you agree with that? >> i don't think there is a yes or no answer to that. be, what doesould the treaty power encompass? .t would not be a circumvention >> could you reach the opposite result? could congress regulate a gun in a school zone by entering into a treaty? >> the question in that case would be whether the treaty is a valid exercise of the treaty. >> but it is. you seem not to see a problem that i think i see. it isoblem underlying this. , to have somer

self-executing treaties. your position would allow the president and senate, not the house, to do anything through a treaty that is not specifically within the prohibitions of the rights, protections of the constitution. that is misery feed. holland. i doubt in a document -- missouri feed. holland. i doubt in that document the president is allowed to do anything. democracy of a which the house is part. if you carried to an extreme, that's where you are. i'm worried about that. there anou, isn't easier way to deal with this case? o, becausee know -- n it will interfere with some problem of foreign affairs that

was never mentioned in any brief , or at least timmy for the first time -- hit me for the first time. there you have an expression of my uncertainties at the moment. anyway you want to reply to that would be helpful. >> i understand the point, justice breyer. there is something that seems attractive in trying to think about this as a question of statutory construction. what i'm trying to point out is that it's not as easy as it seems, that there are real risks to trying to draw a line of that kind. i understand that. that does raise the stakes. that risk is real. the risk that the state department department, legal advisors' brief israel -- >> before your time is out, you have not answer directly

[indiscernible] why the [indiscernible] does constrain, the treaty power implementation of it. why is the bill of rights different from the concern expressed in many cases? the bill of rights is a check, but not the 10th amendment. >> the historic answer is that that is how the framers understood it. i think that's clear from what hamilton said in the quotes we have in our brief, and others framers understood. itself ay power is great and substantial independent power of the national government. by a tot constrained local limitation. that is the lesson of the era of the framing.

those quotes pertain to self- executing treaties. there is no limitation on what the president and the senate can impose as a self-executing requirement, mainly that the states must get back to british theyens and property confiscated, or whatever else. it's a different question whether a treaty can expand at the power of the federal congress into areas it has never been before. that's a separate question, and neither hamilton nor any of the other quotes you referred to address that question. -- it's a valid exercise of the treaty power, if all you do is implement the treaty, it's a valid exercise of congress's power. this is serious business.

i understand the principles of federalism are serious business also. but federalism is a two-way street. with respect to the exercise of the treaty power, the framers made a judgment that this power was going to be exclusively in the hands of the national government, and he needed to be exclusively in the hands of the national government in order to ensure that the u.s. could be a full sovereign on the world stage. it is true that the subject matter is different now than it was at the time of the founding. the framers understood that heard they were careful not to impose a subject matter limitations on the treaty power because they were wise enough to know they could not foresee what might be important for the u.s. to be able to negotiate about on the world stage, or participate fully as a sovereign. conventionl weapons is an illustration of exactly

why the framers were wise in ensuring that there were not subject matter limitations on the exercise of the treaty power . the chemical weapons convention, the u.s. leadership in the convention, has made a big difference in ensuring that this norm which is in our national our foreign relations interest, and our national is a normnterest, that nations of the world have agreed to and that we are then to have leverage to insist that the nations of the world abide by. it is leverage we're trying to exercise right now. it is critically important, and i respectfully submit that the line the petitioner is asking the court to draw is not consistent with the intent of this court'swith president, or the national interests i have described. thank you. >> mr. clement, you have four minutes remaining.

>> the senate's role in the ratification of treaties cannot be a significant that sufficient political check. -- sufficient political check. to take justice scalia's hypothetical example of an international treaty that purported to regulate marriage rights, one thing the senate very well might do in that case is to say, we will ratify it, but make sure it's not self- executing, and then maybe we will use our spending power to get the states on board. we're not going to propose a national solution. it does not make sense to say a nonself executing treaty guarantees the validity of the enacting legislation. respond toint is to the arguments which i think i have already explained why it's not correct, the suggestion that there's is no daylight between the convention and the statute.

there is huge daylight, and the daylight is precisely whether it affects individual conduct and how. everything on justice breyer's list a is not stuff that implicates the convention at all, but yet it is the government's unwavering theory that cannot make limitations on the statute. there is your daylight. i suggest that are statutory construction argument, there is only one way out of this. you have to understand the way it is used as art. i don't think we have violated our pledge to reserve antarctica for only principle -- peaceful purposes. that's the same way we would like you to interpret the statute. the government says you can't do that because that will mess up what's going on in syria. i assume the issue in syria is whether or not the nationstate

of syria is doing something that would violate the convention if they were signatory to this convention. you want to make clear you're only talking about individual conduct, you can solve the problem right there. if the only way the government assures you is if you can make this legislation work is to have it under the police power -- this focuses more on your statutory point, the peaceful purposes. gasose mrs. bond used sarin and send it through the ducts of the house. would you say that's a peaceful purpose? >> no, but it has more to do with the particular qualities of sarin gas, the fact it is on schedule a, that no one can possess it for any lawful use. different isnegar what puts it over the ledge from being an ordinary chemical to a chemical weapon is precisely its

use. justice kagan, you asked a great question. congress was not focused on this issue at all. if you look at the legislation they pass to implement this, the chemical industry and others put in front of them the possibility there was a fourth amendment inspections ofe chemical production facilities that were authorized under the convention. when congress had the constitutional problem in front of it, they had all sorts of provisions to deal with that concern. the future ms. bonds of the world did not have the same lobbying resources as the chemical industry. sort of clearme statement rule would make perfect sense, to make sure congress does not exercise the police power when all it thinks it is doing is implementing a treaty. your statement is about the treaty? >> i'm

,oday on c-span, newsmakers followed by a conversation with the daughter of lyndon johnson and lady bird johnson. then the future of the health care law. >> this week on "newsmakers," senator patrick leahy on a democrat of vermont, joins us to talk about the nsa surveillance program. josh is a white house reporter covering issues for politico and the wall street journal. >> thank you for coming. i wanted to start talking about the legislation you have on the programs that collects nearly all americans phone records. section 215.